Significant changes to defamation proceedings proposed

The Government has announced plans to significantly reform defamation law, with the publication of the General Scheme of the Defamation (Amendment) Bill (the "Bill"), which is available here,

According to the Minister for Justice, the legislation aims to address “the challenges posed by an increasingly complex media landscape.” Some key proposals are set out below.
 
Abolition of juries

It is proposed under the Bill that juries would no longer hear defamation cases, with such cases, including the payment of any damages, being wholly decided by a judge.

This proposal would see the adoption of a central recommendation made in the Report of the Review of the Defamation Act 2009 published in March 2022, and which is available here.

Obligations to consider alternatives to court

There will be an obligation on solicitors to advise clients, prior to issuing proceedings, of the role of the Press Council and of Coimisiún na Meán’s right of reply scheme. The parties to a dispute will also be obliged to consider mediation.

Social media, and other online organisations

An eye-catching aspect of the Bill is that the Circuit Court will now, if the Bill is enacted, be granted the power to make Norwich Pharmacal Orders. Such orders may, in effect, direct online services providers to disclosure the identity, such as basic subscriber information, of an anonymous poster of allegedly defamatory material.

The number of such applications has increased in recent times, given the proliferation of social media, and it will be interesting to whether the ability of the Circuit Court to grant such orders will have an impact on the number of these applications in the future.

Corrective action

If a person is defamed, it is proposed the correction must be published with equal prominence to the defamatory publication.

Choice of jurisdiction

It is proposed to deter the perceived risk of international forum-shopping or ‘defamation tourism’ into Ireland by requiring the court to be satisfied that Ireland is ‘clearly the most appropriate place’ for the action to be brought.

Innocent publication

It is proposed that the Defamation Act 2009 will be amended such that a broadcaster would not be made not liable for statements made during a live broadcast by a person over whom  the  broadcaster  has  no  effective  control; provided  that  the  broadcaster  takes reasonable  precautions  in  advance  of  the  broadcast, and  reasonable  care  during  the broadcast, to  prevent  the  making  of  a  defamatory  statement, and,  where  such  a statement has been made, to minimise the impact of any such statement.

SLAPPS

It is proposed that a new Part will be inserted into the Defamation Act 2009 to deal with Strategic Lawsuit Against Public Participation (SLAPPs). The Bill refers to these as the strategic and abusive use of vexatious litigation, by a powerful entity or individual, to weaken and deter public interest discussion (and in particular, investigative journalism).

Next Steps

The government has approved the Bill’s priority drafting and the General Scheme is to undergo pre-legislative scrutiny at the Joint Oireachtas Committee on Justice. 

The proposed changes will have major procedural and substantive implications in respect of defamation in Ireland and so this Bill is a very significant piece of legislative reform.

Please do not hesitate to contact James Roche or Barry Fagan with any queries.